i-law.com

ANTON DURBECK GMBH v DEN NORSKE BANK ASA

[2006] Lloyd's Rep Plus 1

Shipping – Vessel mortgaged to bank – Arrest of vessel by bank by way of enforcement of mortgage – Perishable cargo on board – Cargo deteriorating and thrown into the sea – Whether bank liable to cargo owners for wrongful interference with performance of bill of lading contract – Law applicable to alleged tort – Private International Law (Miscellaneous Provisions) Act 1995, sections 11 and 12 – Liability under Panamanian law – Liability under English law.

SVENSKA PETROLEUM EXPLORATION AB v GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO 2)

[2006] Lloyd's Rep Plus 2

Arbitration – Sovereign immunity – Enforcement of foreign arbitration award against sovereign state – Claimant obtaining arbitration award against Lithuania in Denmark – Lithuania contesting jurisdiction of arbitrators – Whether Lithuania entitled to state immunity from enforcement of award – Arbitration Act 1996, section 103 – State Immunity Act 1978, sections 1, 2, 3 and 9.

BARLOW CLOWES INTERNATIONAL v EUROTRUST INTERNATIONAL LTD

[2006] Lloyd's Rep Plus 3

Misappropriation of investment funds – Liability for knowing assistance with breach of fiduciary duty – Whether evidence supported finding of dishonesty.

HSBC RAIL (UK) LTD v NETWORK RAIL INFRASTRUCTURE LTD (FORMERLY RAILTRACK PLC)

[2006] Lloyd's Rep Plus 4

Negligence – Rolling stock damaged as result of Hatfield crash – Rolling stock leased by owner to train operating company at time of crash – Insurer paying for repairs and bringing subrogated proceedings in name of owner of rolling stock – Owner of rolling stock having reversionary interest only – Whether owner entitled to sue – Whether damage to rolling stock constituted permanent injury – Whether insurer entitled to sue in reversioner’s name by way of subrogation.

TRADIGRAIN SA v STATE TRADING CORPORATION OF INDIA [2005]

[2006] Lloyd's Rep Plus 5

Banking – Performance bond – Sale of goods (c&f) – Buyers alleging breach of contract – Buyers making call under performance bond in amount exceeding buyers’ true loss – Sellers suffering no actual loss resulting from buyers’ call – Whether seller entitled to immediate repayment of amount overpaid.

ET PLUS SA AND OTHERS v WELTER AND OTHERS

[2006] Lloyd's Rep Plus 6

Conflict of laws – Arbitration – Stay of proceedings – Arbitration in Paris concerning alleged breach of distribution agreement – Claims brought in England in respect of breach of the agreement and against individual employees – Scope of arbitration clause – Whether court had jurisdiction over claims against individual employees domiciled outside England and within the EU – Whether claims should be stayed pending arbitration on case management grounds – Arbitration Act 1996, section 9, Council Regulation 44/2001, Article 6 – Treaty of Rome, Article 81.

R (ON THE APPLICATION OF FOGG) AND ANOTHER v SECRETARY OF STATE FOR DEFENCE [2005]

[2006] Lloyd's Rep Plus 7

Administrative law – Judicial review – Armed merchant vessel sunk by enemy action whilst in convoy – Secretary of State refusing to designate ship for protection against interference – Whether vessel “in service with, or being used for the purposes of, any of the armed forces of the United Kingdom” at time of sinking – Protection of Military Remains Act 1986, section 9(2)(a).

BANQUE SAUDI FRANSI v LEAR SIEGLER SERVICES INC

[2006] Lloyd's Rep Plus 8

Guarantee – Subsidiary of defendant arranged with bank for issue of performance bond – Defendant guaranteed subssidiary’s liability to bank in event of payment – Claim under the bond paid by bank – Defendant refused to honour guarantee – Whether claim under performance bond fraudulent.

THE REPUBLIC OF KAZAKHSTAN v ISTIL GROUP INC

[2006] Lloyd's Rep Plus 9

Arbitration – Jurisdiction – Arbitrators issuing partial award determining tribunal had substantive jurisdiction – Arbitrators subsequently issuing final award declaring previous award a nullity but confirming substantive jurisdiction – Whether arbitrators precluded from reconsidering issue of jurisdiction – Whether previous award a nullity – Whether respondent was original party to arbitration agreement – Whether respondent was liable by succession – Issue estoppel – Effect of earlier judicial proceedings – Whether parties entering into ad hoc agreement – Whether tribunal had substantive jurisdiction.

KONKOLA COPPER MINES PLC AND OTHERS v COROMIN LTD AND OTHERS

[2006] Lloyd's Rep Plus 10

Reinsurance – Conflict of laws – Jurisidction – Whether reinsurance incorporated exclusive jurisdiction clause nominating Zambia – Whether English court should hear action despite clause – Burden of proving existence of clause – Standard of proof.

ROSEWOOD TRUCKING LTD v BRIAN BALAAM

[2006] Lloyd's Rep Plus 11

Carriage of goods by road – Consignment of goods lost by ultimate carrier – Action by intermediate carrier against ultimate carrier for indemnity – Convention on the Contract for the International Carriage of Goods by Road (CMR), articles 36 and 37 – Carriage of Goods by Road Act 1965.

ENTERPRISE OIL LTD v STRAND INSURANCE CO LTD

[2006] Lloyd's Rep Plus 12

Insurance (liability) – Settlement reached by assured in respect of proceedings in Texas – Claim against liability insurers – Whether insurers’ liability based on proof of assured’s actual liability or proof that Texas could reasonably have reached a finding of liability – Whether assured faced liability in tort under Texas law – Whether coverage of policy for contractual liability extended to settlements – Whether settlement had to allocate losses as between the various claims made against the assured – Whether assured could recover defence costs.

GE COMMERCIAL FINANCE LTD v GEE

[2006] Lloyd's Rep Plus 13

Deceit – Conspiracy to injure by use of unlawful means – Claimants buying debts by reason of statements made by defendants – Whether statements false and fraudulently made – Measure of damages.

AMB GENERALI HOLDING AG MANCHES SPRECHER GRIER HALBERSTAM PORTNER & JASKEL v SEB TRYGG LIV HOLDING AKTIEBOLAG MERRIFIELD

[2006] Lloyd's Rep Plus 14

Arbitration – Sale of shares in insurance company – Disputes to be referred to arbitration – Seller merging and changing name – Alleged default by buyer – Arbitration proceedings commenced by solicitors in seller’s original name – Counterclaim by buyer – Whether arbitration proceedings a nullity – Whether there was express, implied or ostensible authority for the commencement of proceedings – Whether participation in proceedings ratified by new company – Whether solicitors liable for breach of warranty – Costs.

DATEC ELECTRONIC HOLDINGS LTD AND ANOTHER v UNITED PARCELS SERVICE LTD

[2006] Lloyd's Rep Plus 15

Carriage of goods by road – Consignment of goods to be carried from England to The Netherlands – Goods failing to arrive – Claim against carriers – Amount of liability – Whether US$50,000 restriction on damages incorporated into contract – Whether loss caused by wilful misconduct of carriers’ employee – Convention on the Contract for the International Carriage of Goods by Road (CMR), articles 17 and 23.

VIKING LINE ABP AND ANOTHER v INTERNATIONAL TRANSPORT WORKERS FEDERATION AND ANOTHER

[2006] Lloyd's Rep Plus 16

European Community law – Decision by claimant to reflag vessel – Strike action threatened by defendant unions – Whether strike action unlawful under free movement of workers and freedom of establishment rules of the Treaty of Rome, article 43 – Whether reference for preliminary ruling should be made to ECJ – Whether interim measures should be granted.

DEEP VEIN THROMBOSIS AND AIR TRAVEL GROUP LITIGATION

[2006] Lloyd's Rep Plus 17

Carriage by air – Warsaw Convention – Passengers suffering serious injury from deep vein thrombosis during normal flight - Whether “accident” within meaning of article 17 – Carriage by Air Act 1961.

ASM SHIPPING LTD OF INDIA v TTMI LTD OF ENGLAND

[2006] Lloyd's Rep Plus 18

Arbitration – Application to set aside award – QC appointed as arbitrator – QC in earlier separate proceedings applied to court for disclosure order against key witness in arbitration – Arbitral panel subsequently refusing adjournment of proceedings when leading counsel unable to appear on scheduled date – Whether QC arbitrator potentially biased – Whether refusal of application amounting to actual bias – Whether bias waived – Arbitration Act 1996, sections 68 and 73.

TTMI LTD OF ENGLAND v ASM SHIPPING LTD OF INDIA

[2006] Lloyd's Rep Plus 19

Shipping – Arbitration – Order made on application to enforce freight award – Whether order should have deducted sums ordered by way of security for costs – Freezing order – Whether risk that award would go unsatisfied.

FUJITSU COMPUTER PRODUCTS CORPORATION v BAX GLOBAL INC

[2006] Lloyd's Rep Plus 20

Carriage of goods by air – Goods lost in transit – Whether carrier entitled to limit liability – Whether air waybill contained valid notice drawing attention to limitation of liability – Warsaw Convention (as amended by Hague Protocol), articles 8, 9 and 22 – Carriage of Goods by Air Act 1961.

ABOU-RAHMAH AND OTHERS v ABACHA AND OTHERS

[2006] Lloyd's Rep Plus 21

Banking – claimants induced by fraud to pay money into bank account – Bank passing money to fraudsters – Whether bank liable – Whether claimants debarred from seeking remedy by reason of illegality – Whether bank guilty of knowing assistance of breach of trust – Whether bank owed duty of care – Whether money subject to resulting or Quistclose trust – Action for money had and received – Defence of change of position.

ABSALOM v TCRU LTD

[2006] Lloyd's Rep Plus 22

Reinsurance – Broker – Entitlement to commission – Premium paid by way of deposit premium with subsequent payments based on adjustment – Broker’s entitlment to commission “15% applicable to deposit premium and minimum rate” – Whether broker entitled to commission on both deposit premium and on adjusted premium.

BP PLC v AON LTD

[2006] Lloyd's Rep Plus 23

Insurance (construction) – Action against brokers – Non-exclusive jurisdiction clause in favour of Illinois – Contract with brokers governed by Illinois law – Whether pleadings could be amended to add action for breach of contract – Jurisdiction of English court – Whether England the most appropriate forum – Whether amended claim time-barred under Illinois law – Foreign Limitation Periods Act 1984 – Limitation Act 1980, section 35 – CPR 17.4(2).

CADRE SA v ASTRA ASIGURARI SA

[2006] Lloyd's Rep Plus 24

Insurance - Conflict of laws – Anti-suit injunction – Ruling by English court that England was the most appropriate forum for the resolution of the dispute – Defendants disregarding ruling and maintaining action in Romania – Whether conduct unconscionable and justifying grant of anti-suit injunction.

DALKIA UTILITIES SERVICES PLC v CELTECH INTERNATIONAL LTD

[2006] Lloyd's Rep Plus 25

Contract Utilities - Long-term contract for provision of energy services to paper mill Whether supplier entitled to serve contractual notice terminating contract on ground of customers material breach in failing to pay monthly charges Amount of money payable by customer on termination - Whether contract to be rectified by construction Whether obligation on customer to pay sum on termination was a penalty Whether customer in repudiatory breach Whether suppliers notice of termination constituted acceptance of repudiatory breach Whether suppliers notice of termination constituted repudiatory breach.

HYUNDAI MERCHANT MARINE CO LTD v FURNACE WITHY (AUSTRALIA) PTY THE “DORIC PRIDE”

[2006] Lloyd's Rep Plus 26

Charter-party (Time) – Off-hire – Vessel chartered for trip from US Gulf to South Korea – Charterers directed vessel to load at New Orleans – Vessel ordered by US Coast Guard to await security clearance before entering Mississippi river – Whether vessel “detained” within meaning of off-hire clause – Whether delay caused by USCG – Whether delay “occasioned by calling port of trading under this charter”.

SUKUMAN LTD v THE COMMONWEALTH SECRETARIAT

[2006] Lloyd's Rep Plus 27

Arbitration – Error of law – Exclusion of right of appeal – Exclusion agreement appearing in another document incorporated into arbitration clause – Whether valid exclusion – Whether right to appeal preserved by European Convention on Human Rights – Arbitration Act 1996, section 69.

CARBOPEGO-ABASTECIMENTO DE COMBUSTIVEIS SA v AMCI EXPORT CORPORATION

[2006] Lloyd's Rep Plus 28

Measure of damages for breach of contract – Agreement for supply of coal – Defendant wrongfully failed to deliver two shipments of coal – Whether claimant entitled to difference between contract price and market price on date of repudiation or on later date when the contract of sale was terminated for breach – Sale of Goods Act 1979, section 51(1).

GOSHAWK DEDICATED LTD AND OTHERS v TYSER & CO LTD AND ANOTHER

[2006] Lloyd's Rep Plus 29

Insurance brokers – Placing, claims and accounting documents in possession of brokers – Whether underwriters legal or equitable owners of documents – Whether implied obligation on assureds to disclose documents to underwriters – Whether implied contract between brokers and undewriters that brokers would provide documents on behalf of assureds – Effect of Terms of Business Agreements 2001

LONSDALE v HOWARD & HALLAM LTD

[2006] Lloyd's Rep Plus 30

Agency – Termination of agency relationship following closure of principal’s business – Amount of agent’s entitlement to compensation – Whether agent entitled to recover compensation only for damage or whether compensation to be assessed on basis of what was fair and reasonable – Commercial Agents (Council Directive) Regulations 1993, regulation 17(6).

PARSONS CORPORATION AND OTHERS v CV SCHEEPVAARTONDERNEMING THE “HAPPY RANGER”

[2006] Lloyd's Rep Plus 31

Carriage of goods by sea – Cargo damaged when crane hook broke while lifting cargo for loading – Liability of carrier for defects in vessel – Whether carriers exercised due diligence to make vessel seaworthy – Hague-Visby Rules, article III rules 1 and 2.

GROVIT v DE NEDERLANDSCHE BANK

[2006] Lloyd's Rep Plus 32

Conflict of laws – Jurisdiction – Action for libel against Dutch bank – Whether bank a separate entity entitled to state immunity – State Immunity Act 1978 section 14 – Whether state immunity can be pleaded as defence to jurisdiction under Council Regulation 44/2001 – Whether action a civil or commercial matter – Council Regulation 44/2001, articles 1 and 5(3) – Effect of Human Rights Act 1998.

TIDEBROOK MARITIME CORPORATION v VITOL SA (THE “FRONT COMMANDER”)

[2006] Lloyd's Rep Plus 33

Charter-party (Voyage) – Laytime – Calculation – Charter providing that laytime should not commence before earliest layday unless charterer consented in writing – Charterer instructing vessel to tender NOR and berth prior to earliest layday - Whether charterers consented to laytime commencing early.

MASRI v CONSOLIDATED CONTRACTORS GROUP SAL (HOLDING COMPANY) AND OTHERS

[2006] Lloyd's Rep Plus 34

Conflict of laws – Jurisdiction – Two sets of proceedings commenced by claimant in England against different defendants but raising the same issues – Whether third parties could be joined to second action – Risk of conflicting judgments if no joinder – Brussels Regulation 44/2001, article 6.1.

R v GOODWIN

[2006] Lloyd's Rep Plus 35

Criminal law – Defendant causing personal injury while riding a jet ski off Weymouth – Prosecution under Merchant Shipping Act 1995, section 58(2)(a) – Whether jet ski a “sea-going” “ship” “used in navigation” – Whether person riding a jet ski the “master” of a ship – Merchant Shipping Act 1999, sections 49 and 313.

THAMES VALLEY POWER LTD v TOTAL GAS & POWER LTD

[2006] Lloyd's Rep Plus 36

Contract for supply of gas to Heathrow Airport – Force majeure clause releasing party unable to perform from obligations – Disputes to be referred to expert determination – Supplier serving notice of force majeure – Whether dispute between the parties – Whether judicial proceedings should be stayed – Whether claim for force majeure well founded.

HSBC RAIL (UK) LTD v NETWORK RAIL INFRASTRUCTURE LTD

[2006] Lloyd's Rep Plus 37

Negligence – Rolling stock damaged as result of Hatfield crash – Rolling stock leased by owner to train operating company at time of crash – Insurer paying for repairs and bringing subrogated proceedings in name of owner of rolling stock – Owner of rolling stock having reversionary interest only – Whether owner entitled to sue – Whether damage to rolling stock constituted permanent injury – Whether insurer entitled to sue in reversioner’s name by way of subrogation.

PENTONVILLE SHIPPING LTD v TRANSFIELD SHIPPING INC THE “JOHNNY K”

[2006] Lloyd's Rep Plus 38

Arbitration – Appeal against award – Claim by owners for deadfreight or damages – Whether charterers responsible for ordering vessel to sail without loading full cargo – Whether arbitrators made appropriate findings – Whether award should be remitted to arbitrators – Arbitration Act 1996, section 69.

KANORIA AND OTHERS v GUINNESS

[2006] Lloyd's Rep Plus 39

Arbitration – Enforcement of award – Allegation that respondent not given the opportunity to answer a charge of bad faith in the arbitration – Whether enforcement should be refused – Arbitration Act 1996, section 103.

BARBADOS TRUST COMPANY LTD v BANK OF ZAMBIA AND ANOTHER

[2006] Lloyd's Rep Plus 40

Contract – Enforcement by third party – Claim for outstanding advances made to defendant – Validity of assignment of right to recover advances – Assignor declaring itself trustee of right of recovery –Validity of declaration of trust – Whether declaration of trust prohibited by terms of advances.

THE REPUBLIC OF ECUADOR V OCCIDENTAL EXPLORATION & PRODUCTION CO (NO 2)

[2006] Lloyd's Rep Plus 41

Arbitration – Bilateral Investment Treaty between Ecuador and the US – US company commencing arbitration against Ecuador – Company obtaining award – Whether award in excess of arbitrator’s jurisdiction – Proper construction of BIT – Whether arbitrators guilty of serious irregularity by granting remedies based on international law – Arbitration Act 1996, sections 67 and 68.

NEWSAT HOLDINGS LTD AND OTHERS v ZANI [2006] EWHC 342 (Comm)

[2006] Lloyd's Rep Plus 42

Jurisdiction – Alleged fraudulent misrepresentation – Alleged false statements made in London to solicitors of Bermuda companies – Investment decisions made by claimants in London – Defendant domiciled in the Philippines – Whether English court had jurisdiction – CPR 20(8).

PRIMETRADE AG v YTHAN LTD (THE “YTHAN”)

[2006] Lloyd's Rep Plus 43

Arbitration – Jurisdiction of arbitrators – Charter-party – Identity of holder of bills of lading – Carriage of Goods by Sea Act 1992, sections 2 and 3 – Whether party challenging jurisdiction of arbitrators can raise new objections during judicial challenge – Arbitration Act 1996, sections 67 and 73.

BERNUTH LINES LTD v HIGH SEAS SHIPPING LTD (THE “EASTERN NAVIGATOR”)

[2006] Lloyd's Rep Plus 44

Arbitration – Notice of arbitration – Whether validly served – Notice of arbitration sent by e-mail – Whether notice sent to correct e-mail address – Ground of challenge – Arbitration Act 1996, sections 14(4), 67, 68, 69, 72 and 76 – LMAA Small Claims Procedure – Whether counterclaim in excess of SCP limits permitted use of SCP.

COVINGTON MARINE CORP AND OTHERS v XIAMEN SHIPBUILDING INDUSTRY CO LTD

[2006] Lloyd's Rep Plus 45

Arbitration – Shipbuilding – Claims by buyers for repudiation of contracts by builders – Builders denying that binding contracts entered into – Arbitrators ruling that contracts automatically rescinded by reason of conditions not being met – Buyers’ claim dismissed – Appeal under Arbitration Act 1996, section 69 – Whether arbitrators correct.

ABB AG v (1) HOCHTIEF AIRPORT GMBH (2) ATHENS INTERNATIONAL AIRPORT SA

[2006] Lloyd's Rep Plus 46

Arbitration – Serious irregularity – Substantial injustice – Arbitrators finding that applicant guilty of bad faith in negotiations with respondent – Arbitrators concluding that respondent not itself guilty of bad faith in refusing to accept transfer of shares by applicant to third party – Whether conclusion tainted by serious irregularity – Whether Greek applicable law disregarded – Whether refusal to order disclosure of documents amounted to serious irregularity – Arbitration Act 1996, section 68.

WEISSFISCH v JULIUS

[2006] Lloyd's Rep Plus 47

Arbitration – Dispute arising between two brothers – Agreement for arbitration with its seat in Switzerland – Application for temporary injunction restraining arbitrator from ruling on his own jurisdiction – Whether English court should intervene.

EASE FAITH LTD v LEONIS MARINE MANAGEMENT LTD

[2006] Lloyd's Rep Plus 48

Towage – Claimant appointing defendant tugowner to tow vessel from Balboa to China – Defendant entering into agreement with Part 20 defendant tugowner – Vessel delayed in reaching China – Whether defendant in breach of obligation to carry out contract with proper despatch – Defendant denying liability and bringing Part 20 proceedings – Whether claim succeeded – Whether Part 20 defendant liable to defendant.

HEESENS YACHT BUILDERS BV V COX SYNDICATE MANAGEMENT LTD (THE “RED SAPPHIRE”)

[2006] Lloyd's Rep Plus 49

Insurance (liability) – Assured shipyard insured against liability on guarantees given by it in respect of two vessels built by it for claimants – Whether policy applied to guarantees on vessels delivered during currency of policy or to guarantees on vessels whose construction commenced during currency of policy.

GALAXY SPECIAL MARITIME ENTERPRISE v PRIMA CEYLON LTD (THE “OLYMPIC GALAXY”)

[2006] Lloyd's Rep Plus 50

Practice – Proceedings served out of jurisdiction – Application to set aside or stay – General average – Claim by owners against Australian cargo interests under Lloyd’s Average Bond following grounding and salving of vessel off Sri Lanka – Action previously brought in Sri Lanka by cargo interests against owners for declaration that grounding due to conduct of owners – No contract of carriage between cargo interests and owners – Whether English proceedings should be set aside.

HORN LINIE GMBH & CO v PANAMERICANA FORMAS E IMPRESOS SA AND ANOTHER (THE “HORNBAY”)

[2006] Lloyd's Rep Plus 51

Conflict of laws – Carriage of goods by sea – Bill of lading providing for English law and exclusive jurisdiction – Proceedings issued in Colombia by cargo owners – Proceedings simultaneously issued in England by carriers seeking declaration of non-liability – Whether valid choice of law – Whether consent to clause – Whether anti-suit injunction should be granted – Rome Convention 1980, articles 3 and 8.

POSEIDON CHARTERING BV v MARIANNE ZEESCHIP VOF

[2006] Lloyd's Rep Plus 52

Agency – Meaning of “commercial agent” – Entitlement of agent to commission – Claim for indemnity after termination of agency – Commercial Agents Directive, Council Directive 86/653/EEC, articles 1(2), 7(1) and 17.

COMPANIA SUD AMERICAN VAPORES v MS ER HAMBURG SCHIFFAHRTSGESELLSCHAFT MBH & CO KG

[2006] Lloyd's Rep Plus 53

Charter-party (Time) – Claim by owners of vessel against charterers for explosion on board allegedly caused by loading a container of chemicals – Charter-party placing responsibility for stowage on charterers – Whether owners owed a duty to charterers to supervise loading – Effect of heating of bunkers by owners – Whether heating related to running of ship or care of cargo – Whether arbitrators’ award should be overturned – Arbitration Act 1996, section 69.

BONNER AND OTHERS v COX AND OTHERS

[2006] Lloyd's Rep Plus 54

Reinsurance – Energy risks insured under Open Cover – Reinsurance issued as standing offer to subscribers to Open Cover – Whether brokers’ knowledge of loss prior to acceptance of reinsurance cover was a material fact – Whether reinsurers induced – Whether misrepresentations made to reinsurers as to duration and nature of direct risks under Open Cover – Whether implied term that reinsured would not “write against” the reinsurance – Nature of terms to be implied into a reinsurance agreement – Whether reinsurance covered long-term risks re-signed into the period of coverage.

ROYAL & SUN ALLIANCE INSURANCE PLC AND ANOTHER v MK DIGITAL FZE (CYPRUS) LTD AND OTHERS

[2006] Lloyd's Rep Plus 55

Conflict of laws – Jurisdiction – Carriage of goods by road – Consignment of mobile phones stolen en route from Paris to Calais for subsequent export – Application by carrier and liability insurers for declaration that dispute governed by jurisdictional rules in CMR Convention, article 31 –Whether contract one for international carriage of goods by road – Whether English court first seised of proceedings – Jurisdiction under Brussels Convention 1968, articles 2, 5 and 53 – Carriage of Goods by Road Act 1965 – Civil Jurisdiction and Judgments Act 1982, section 42.

BARCLAYS BANK PLC v KINGSTON

[2006] Lloyd's Rep Plus 56

Banking – Guarantee – Defendants guaranteeing liabilities of football club – Club going into administration – Bank selling assets of club – Guarantors arguing that sale was at undervalue – Whether bank owed duty of care to guarantors in selling assets of debtor.

DADOURIAN GROUP INTERNATIONAL INC V SIMMS

[2006] Lloyd's Rep Plus 57

Worldwide freezing orders (ex Mareva injunctions) – Guidelines for grant of worldwide freezing orders – Civil Procedure Rules, Part 25 Practice Direction.

COUTTS & CO v SEBESTYEN

[2006] Lloyd's Rep Plus 58

Banking – Overdraft facility – Customer exceeding overdraft limit – Bank continuing to make payments out of customer’s account – Bank claiming repayment of overdraft plus interest – Whether overdraft agreement unenforceable – Whether bank complied with conditions set out in determination by Office of Fair Trading – Consumer Credit Act 1974, section 74.

HALPERN AND OTHERS v HALPERN AND OTHERS

[2006] Lloyd's Rep Plus 59

Arbitration – Dispute arising under will – Arbitration agreed to be governed by Jewish law – Parties reaching a settlement embodied in award – Whether settlement agreement valid – Law applicable to settlement agreement – Law applicable to arbitration agreement and to the procedure of the arbitration.

PETROMEC INC v PETROLEO BRASILIERO SA PETROBRAS AND ANOTHER

[2006] Lloyd's Rep Plus 60

Contract for provision of upgrading services to oil platform – Alleged misrepresentation as to payment terms by defendants – Tort of deceit – Whether representations false – Whether defendants aware of allegedly false statements – Whether claimant suffered any loss – Reliance.

TALBOT UNDERWRITING LTD v NAUSCH HOGAN & MURRAY THE “JASCON 5”

[2006] Lloyd's Rep Plus 61

Insurance (marine construction risks) – Brokers instructed by owners to take out insurance covering repair of vessel with repairers as co-assured – Slip policy not naming repairers – Whether repairers parties to insurance under insuring clause or by reason of doctrine of undisclosed principal – Whether trust of policy in favour of repairers – Whether existence of undisclosed principal a material fact requiring disclosure – Whether insurers induced – Whether duty of disclosure or breach of duty waived – Whether assured and repairers suffering loss by reason of any breach of duty by brokers – Whether loss proximately caused by delay or by insured peril – Marine Insurance Act 1906, section 55(2)(b).

SEA TRADE MARITIME CORPORATION v HELLENIC MUTUAL WAR RISKS ASSOCIATION (BERMUDA) LTD (THE “ATHENA”)

[2006] Lloyd's Rep Plus 62

Arbitration – Arbitrators issuing award on substantive issues and reserving award on costs – Second award subsequently made on costs – Validity of costs award – Whether arbitrators failing to deal with costs so that time limits for supplementary award applied – Whether arbitrators entitled to reserve costs award and to make award at any later date – Arbitration Act 1996, sections 47 and 57.

NORTH STAR SHIPPING LTD v SPHERE DRAKE INSURANCE PLC

[2006] Lloyd's Rep Plus 63

Insurance (marine war risks) – Vessel destroyed by explosive device – Misrepresentation and non-disclosure – Whether outstanding criminal and civil proceedings a material fact – Whether impecuniosity of assured a material fact – Whether overvaluation of vessel a material fact – Marine Insurance Act 1906, section 18(2).

THE ARGO FUND LTD v ESSAR STEEL LTD

[2006] Lloyd's Rep Plus 64

Banking – Banks entering into syndicated loan facility agreement with borrower – Investment company purchasing debt on secondary debt market – Purchaser alleging borrower in breach of facility agreement by failing to repay debt on date due – Whether purchaser entitled to claim under facility agreement as transferee or assignee of debt.

MEHTA v J PEREIRA FERNANDES SA

[2006] Lloyd's Rep Plus 65

Guarantee – Director of company giving guarantee by e-mail of company debts to secure withdrawal of winding up petition – Action on guarantee – Whether e-mail a sufficient note or memorandum – Whether guarantee signed – Statute of Frauds 1677, section 4.

KAMILLA HANS-PETER ECKHOFF KG v A C OERSSLEFF’S EFTF A/B (THE “KAMILLA”)

[2006] Lloyd's Rep Plus 66

Charter-party (Time) – Inter-Club Agreement – Construction – Cargo partially damaged due to unseaworthiness of vessel – Port authorities refusing to allow cargo to be discharged – Owners alleging that port authorities’ decision irrational and unforeseeable – Arbitrators holding that unseaworthiness caused loss – Whether arbitrators erred in law – Arbitration Act 1996, section 69.

COMMISSIONERS OF CUSTOMS AND EXCISE v BARCLAYS BANK

[2006] Lloyd's Rep Plus 67

Banking – Duty of care owed by bank – Commissioners obtaining freezing injunction against bank’s customer in respect of unpaid VAT – Bank paying sums out of account despite injunction – Test for duty of care – Whether bank assumed responsibility to Commissioners – Whether duty arose from court’s order.

TIDEBROOK MARITIME CORPORATION v VITOL SA (THE “FRONT COMMANDER”)

[2006] Lloyd's Rep Plus 68

Charter-party (Voyage) – Laytime – Calculation – Charter providing that laytime should not commence before earliest layday unless charterer consented in writing – Charterer instructing vessel to tender NOR and berth prior to earliest layday – Whether charterers consented to laytime commencing early.

RAVENNAVI SPA v NEW CENTURY SHIPBUILDING CO LTD

[2006] Lloyd's Rep Plus 69

Contract – Option agreement – Buyer having option to purchase two vessels from shipbuilders – Option agreement providing for vessels to be delivered by specified dates with earlier delivery if possible – Options exercised under shipbuilding contracts containing “entire agreement” clause – Buyer contending that shipyard was in breach of its obligation to make earlier delivery – Shipyard contending that obligation to make earlier delivery lapsed on exercise of option – Determination of preliminary issues on construction of option agreement and shipbuilding contracts.

HARPER VERSICHERUNGS AG v INDEMNITY MARINE ASSURANCE CO LTD

[2006] Lloyd's Rep Plus 70

Arbitration – Jurisdiction – Business of insurance companies transferred to third party – Disputes arising under reinsurance agreement – Arbitration proceedings against reinsurers commenced in name of insurance companies rather than that of third party – Whether proceedings a nullity.

ANDROMEDA MARINE SA v O W BUNKER & TRADING A/S (THE “MANA”)

[2006] Lloyd's Rep Plus 71

Conflict of laws – Jurisdiction – Defendants supplied bunkers to time-charterers – Defendants asserting maritime lien over vessel – Shipowners bringing proceedings for negative declaratory relief relying on exclusive English jurisdiction clause in bunker supply contract – Whether shipowners agreed to be bound by jurisdiction clause – Brussels Convention 1968, article 17.

RIYAD BANK v AHLI UNITED BANK PLC

[2006] Lloyd's Rep Plus 72

Banking – Defendant bank agreeing to provide technical services to claimant bank in establishing investment fund which did not contravene Islamic lending principles (“Sharia-compliant”) – Fund established by claimant in England based on model of defendant’s own fund – Investors in fund able to invest in equipment leases – Claimant’s fund subsequently suspended following poor performance – Whether defendant owed a duty of care to claimant – Whether defendant had assumed responsibility towards claimant – Measure of damages.

FORREST v GLASSER

[2006] Lloyd's Rep Plus 73

Contract for sale and purchase of shares – Time-bar clause – Claims to be notified within three years of completion date – Letter written by solicitors giving notice of intention to make a claim – Whether letter satisfied time-bar clause – Whether court could take account of correspondence prior to letter.

GOLD COAST LTD v NAVAL GIJON SA

[2006] Lloyd's Rep Plus 74

Arbitration – Award – Arbitrator asked to correct error in award – Arbitrator asserting no error – Further award issued in which error admitted – Time limits for application to arbitrator under slip rule expired – Whether court should extend time for application under slip rule – Arbitration Act 1996, sections 57 and 79.

ABU DHABI INVESTMENT CO v H CLARKSON & CO LTD

[2006] Lloyd's Rep Plus 75

Arbitration – Stay of proceedings – Action for breach of shareholders’ agreement governed by law of UAE – Whether arbitration clause enforceable under law of UAE.

HABIB BANK LTD v CENTRAL BANK OF SUDAN

[2006] Lloyd's Rep Plus 76

Banking – Letters of credit – Payment made under letters of credit by issuing bank – Failure by confirming bank to provide indemnity – Jurisdiction of English court – Service outside the jurisdiction – Whether service valid – Whether agreement governed by English law – CPR Parts 6.20 and 6.24 – Whether claim time barred – Whether debt acknowledged – Limitation Act 1980, sections 5 and 29 – Rate of interest.

EXFIN SHIPPING LTD v TOLANI SHIPPING CO LTD

[2006] Lloyd's Rep Plus 77

Arbitration – Jurisdiction – Charterers admitting liability for demurrage but refusing to make immediate payment – Owners obtaining arbitration award – Charterers challenging substantive jurisdiction of arbitrator – Whether a “dispute” existed between the parties following admission of liability – Arbitration Act 1996, section 67 – Indemnity costs.

TRAFIGURA BEHEER BV v KOOKMIN BANK CO

[2006] Lloyd's Rep Plus 78

Banking – Letter of credit – Issuing bank commencing proceedings against seller in Korea for breach of duty – Seller seeking declaration of non-liability and anti-suit injunction in England – Law governing claim by issuing bank against seller – Whether claim “relating to tort” – Place where most significant elements constituting the tort occurred – Whether claim more closely connected with some other jurisdiction – Private International Law (Miscellaneous Provisions) Act 1995, sections 9, 11 and 12.

KONKOLA COPPER MINES PLC v COROMIN LTD (NO 2)

[2006] Lloyd's Rep Plus 79

Insurance – Jurisdiction – Claimant insured by Zambian insurers under policy subject to exclusive Zambian jurisdiction and by English insurers under policy subject to exclusive English jurisdiction – Whether Zambian insurers should be co-defendants to proceedings against English insurers – Whether exclusive jurisdiction clause overrode need to avoid fragmentation of proceedings.

EURO LONDON APPOINTMENTS LTD v CLAESSENS INTERNATIONAL LTD

[2006] Lloyd's Rep Plus 80

Agency – Employment introductions – Client entitled to refund of fee only if fee paid by client within seven days of invoice – Whether clause an unenforceable penalty.

ECONET WIRELESS LTD v VEE NETWORKS LTD

[2006] Lloyd's Rep Plus 81

Arbitration – Interim relief – Shareholders’ agreement incorporating right of pre-emption – Seat of arbitration in Nigeria – Without notice application to English court for temporary injunction to restrain sale of shares to third party – Failure to commence arbitration after granting of injunction – Whether applicant guilty of non-disclosure or misrepresentation on application for injunction – Whether injunction should have been granted – Arbitration Act 1996, section 44.

ECONET SATELLITE SERVICES LTD v VEE NETWORKS LTD

[2006] Lloyd's Rep Plus 82

Arbitration – Transaction set-off – Disputes arising under main agreement to go to arbitration in Denmark – Disputes under later agreement to go to arbitration in England – Arbitration commenced in England – Whether arbitrators had jurisdiction to hear set-off defence under main agreement – UNCITRAL Rules, article 19 – Arbitration Act 1996, section 67.

PEEKAY INTERMARK LTD AND ANOTHER v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD

[2006] Lloyd's Rep Plus 83

Misrepresentation – Bank making false statements to investor regarding nature of potential investment – Whether investor relied on statements – Whether statements corrected by the terms of the contract before investment made.

DORNOCH LTD v MAURITIUS UNION ASSURANCE CO LTD

[2006] Lloyd's Rep Plus 84

Reinsurance – Conflict of laws – Direct bankers’ blanket policy governed by law of Mauritius – Reinsurance governed by English law – Proceedings for negative declaration issued by reinsurers in England – Reinsurers then joined to action by assured against insurers in Mauritius – Whether reinsurance incorporated an exclusive jurisdiction clause – Law applicable to reinsurance – Rome Convention 1980, articles 2 and 3 – Whether England the most convenient forum for action – Action in tort by reinsurers for fraudulent misrepresentation – Law applicable to tort claim – Private International Law (Miscellaneous Provisions) Act 1995, sections 11 and 12.

ST MICROELECTRONICS NV v CONDOR INSURANCE LTD

[2006] Lloyd's Rep Plus 85

Guarantee by defendants of sums due under supply contracts – Debtor agreeing to make early payment of part of principal debt in order to secure continuity of supplies – Whether agreement amounting to variation of terms of debt – Whether guarantor discharged from liability.

NORBROOK LABORATORIES LTD v TANK

[2006] Lloyd's Rep Plus 86

Arbitration – Removal of arbitrator and setting aside awards – Serious irregularity – Arbitrator contacting potential witnesses and not disclosing their evidence – Arbitrator having unilateral conversations with each party – Arbitrator showing antagonism towards applicant’s solicitors – Award on costs unreasoned – Arbitration Act 1996, sections 24 and 68.

WESTERNGECO LTD v ATP OIL & GAS (UK) LTD

[2006] Lloyd's Rep Plus 87

Contract – Construction – Contractor performing seismic survey work for offshore oil company – Damage caused to third party’s wellhead installation by contractor’s negligence – Whether contract entitled contractor to indemnity from company to extent that contractor’s liability to third party exceeded payments received by contractor for work performed under the contract.

HEATH LAMBERT LTD v SOCIEDAD DE CORRETAJE DE SEGUROS (NO 2)

[2006] Lloyd's Rep Plus 88

Reinsurance (marine) – Placing broker paying premium on marine reinsurance policy – Placing broker not indemnified by producing broker or reinsured – Whether placing broker had lien over proceeds of claim to satisfy outstanding premium – Marine Insurance Act 1906, section 53.

K LTD v NATIONAL WESTMINSTER BANK PLC HM REVENUE AND CUSTOMS (intervening party) SERIOUS ORGANISED CRIME AGENCY (intervening party)

[2006] Lloyd's Rep Plus 89

Banking – Money laundering – Bank refusing to obey client’s instructions on suspicion that criminal offence had been committed – Procedure to be adopted by bank – Proceeds of Crime Act 2002, sections 328 and 335.

ERG RAFFINERIE MEDITERRANEE SPA v CHEVRON USA INC (THE “LUXMAR”)

[2006] Lloyd's Rep Plus 90

Sale of goods (fob) – Construction – Nominated vessel arriving within laycan period – Delay by sellers in loading vessel – Buyers terminating contract for repudiatory breach – Whether termination lawful – Whether buyers entitled to general damages for late delivery.

INTERNATIONAL TRANSPORTATION SERVICE INC v THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESSEL”CONVENIENCE CONTAINER”

[2006] Lloyd's Rep Plus 91

Admiralty practice – Jurisdiction – Arrest of vessels – Shipowners went into liquidation prior to issue of writs in rem – Whether liquidation divested shipowners of beneficial ownership of vessels so as to preclude exercise of admiralty jurisdiction – High Court Ordinance, section 12B(4)(i).

(1) TAYLOR WOODROW HOLDINGS LTD (2) GEORGE WIMPEY SOUTHERN COUNTIES LTD v BARNES & ELLIOTT LTD

[2006] Lloyd's Rep Plus 92

BALMORAL GROUP LTD v BOREALIS [UK] LTD BOREALIS AS BOREALIS A/S

[2006] Lloyd's Rep Plus 93

Sale of goods – Polyethylene supplied for manufacture of tanks – Tanks made using polyethylene failed – Whether seller in breach of implied terms of suitability and fitness for purpose – Whether contracts made on seller’s or buyer’s terms – Whether exclusion clauses in sale contracts reasonable – Application of English law in absence of proof of content of foreign law – Whether contracts constituted international supply contracts – Measure of damages – Sale of Goods Act 1979, sections 14(2) and 14(3) – Unfair Contract Terms Act 1977, sections 6, 11, 26 and 27, and schedule 2.

R (ON THE APPLICATION OF FOGG AND ANOTHER) v SECRETARY OF STATE FOR DEFENCE

[2006] Lloyd's Rep Plus 94

Administrative law – Judicial review – Armed merchant vessel sunk by enemy action whilst in convoy – Secretary of State refusing to designate ship for protection against interference – Whether vessel “in service with” or being used “for the purposes of” the armed forces of the United Kingdom at time of sinking – Protection of Military Remains Act 1986, section 9(2)(a).

VERTEX DATA SCIENCE LTD v POWERGEN RETAIL LTD

[2006] Lloyd's Rep Plus 95

Practice – Injunction – Outsourcing agreement – Arbitrator having no power to grant injunctive relief – Parties entitled to apply to court where dispute not capable of being referred to arbitration – Application for interim injunction – Whether application precluded by arbitration clause – Whether criteria for interim injunction fulfilled.

GASTRONOME (UK) LTD v ANGLO DUTCH MEATS (UK) LTD

[2006] Lloyd's Rep Plus 96

Guarantee – Supply of goods by claimant to debtor – Guarantee provided by claimant – Whether claimant beneficiary of guarantee – Admissibility of extrinsic evidence.

WPP HOLDINGS ITALY SRL v BENATTI

[2006] Lloyd's Rep Plus 97

Jurisdiction – Claims brought by claimants in England and by defendant in Italy – Whether English courts first seised of proceedings – Whether exclusive jurisdiction clause valid – Whether contract one of employment – Council Regulation 44/2001/EC, articles 19, 23 and 27 – Council Regulation 1348/2000/EC, article 14.

OCEANOGRAFIA SA DE CV v DSND SUBSEA AS

[2006] Lloyd's Rep Plus 98

Arbitration – Jurisdiction – Parties orally agreeing terms of charter-party containing London arbitration clause – Contract to be “subject to the signing of mutually agreeable contract terms and conditions” – Contract terms and conditions signed by one party only – Whether agreement binding – Whether collateral condition precedent – Whether waiver by election – Whether estoppel by convention – Arbitration Act 1996, section 67.

ULLISES SHIPPING CORPORATION v FAL SHIPPING CO LTD (THE “GREEK FIGHTER”)

[2006] Lloyd's Rep Plus 99

Charter-party (Time) – Vessel detained by authorities for breaching UN oil sanctions – Vessel subsequently confiscated and sold – Owners claiming damages from charterers for loss of vessel and loss of hire – Whether charterers in breach of “lawful merchandise” provision – Whether charterers obliged to indemnify owners – Whether charterers in breach of safe port warranty – Whether charterers in breach of redelivery obligation – Whether charter-party frustrated – Whether owners entitled to damages for loss of hire.

TONKIN v UK INSURANCE LTD

[2006] Lloyd's Rep Plus 100

Insurance (fire) – Assured’s premises destroyed by fire – Date at which measure of indemnity to be calculated – Whether insurers liable in damages for late payment – Whether part of claim fraudulent – Entitlement of assured to interest.

STERLING HYDRAULICS LTD v DICHTOMATIK LTD

[2006] Lloyd's Rep Plus 101

Sale of goods – Whether contract incorporated sellers’ standard terms and conditions – Effect of sellers’ exclusion or restriction of liability clauses – Whether clauses satisfied test of reasonableness – Unfair Contract Terms Act 1977.

OT AFRICA LINE LTD AND OTHERS v MAGIC SPORTSWEAR CORP AND OTHERS

[2006] Lloyd's Rep Plus 102

Conflict of laws – Forum non conveniens – Bill of lading conferring exclusive jurisdiction on High Court in London – Shippers bringing proceedings against carriers in Canada under section 46(1) of Canadian Maritime Liability Act – English courts granting carriers anti-suit injunctions – Carriers seeking stay of Canadian proceedings – Whether Canadian courts deprived by section 46(1) of discretion to grant stay – Whether Canadian courts should give weight to the exclusive jurisdiction clause and English judgments – Canada.

PREKONS INSAAT SANAYI AS v ROWLANDS CASTLE CONTRACTING GROUP LTD

[2006] Lloyd's Rep Plus 103

Arbitration – Stay of proceedings – Claim for sum owing under construction contract – Defendant asserting cross-claim under a separate contract governed by law of Turkey and containing arbitration clause – Whether claimant entitled to stay of defendant’s cross-claim – Whether cross-claim operated as defence to claim – Arbitration Act 1996, section 9.

Lloyd's Law Reports Plus